Political activity of brazilian adjudication: some dimensions

Since de advent of what is known as new constitucionalism, jurists have faced a difficult task in order to overcome some failures of normative positivism. In this context, the judiciary has played a renewed role, which c

Since de advent of what is known as new constitucionalism, jurists have faced a difficult task in order to overcome some failures of normative positivism. In this context, the judiciary has played a renewed role, which can be justified on grounds of legal theory and on institutional reasons. However, this new role has led legal philosophers to several concerns, such as the relationship between law and ethics. On one hand, Critical Legal Studies points out that the judge always acts informed by his own convictions. On the other hand, according to R. Forst (within another context, but also relevant here), this is not really a problem, because a rule can be provided with ethics, but not ethically justified. This openness of law to moral makes it difficult for the interpretative judicial discourse to be taken as claimed by K. Günther: as a discourse of application only, and not of justification. All these controversies, however, lead to a common statement: the constitutional adjudication has been exercising a different activity. Some legal systems allows such activity legitimacy in some extent, like Brazilian’s, for example, which i) states a very broad adjudication, ii) provides an extensive catalog of basic rights, and iii) contains several procedural mechanisms for their protection. This empowers the adjudication to exercise what can be called a political activity. Therefore, a series of moral issues which were once exclusive to the political arena have been brought to the judiciary, such as: gay marriage, abortion, affirmative action, religious freedom, federation, separation of powers, distribution of scarce resources. In a democracy, these moral questions ought to be mainly decided through deliberation outside the judiciary, but not always this is what happens. The paper discusses these issues, showing also how the Brazilian Supreme Court has dealt - technically, or not - with this relationship between law and justice in a complex and pluralist society.